Title Guarantee & Trust Co. v. Ward

LACOMBE, Circuit Judge (after stating the facts as above). The testator died March 31, 1901, the repealing act of 1902 (Act April 12, 1902, c. 500, § 7, 32 Stat. 97 [U. S. Comp. St. Supp. 1909, p. 876]), was passed April 12th, and by its terms took effect July 1st of that year. The tax was assessed September 1, 1902. The act of 1902 saved “all taxes or duties imposed by section 29 of the act of June 13, 1898, and amendments thereof, prior to the taking effect of this act.” Plaintiffs contend that this tax was not “imposed” within the meaning of the act of 1902 until it was levied and assessed on September 1, 1902, and that therefore the tax is not within the saving clause of the repealing act. This contention has been’ disposed of adversely by this court in Eidman v. Tilghman, 136 Fed. 141, 69 C. C. A. 139, and by the Supreme Court in Hertz v. Woodman (opinion filed July 1, 1910) 218 U. S. 205, 30 Sup. Ct. 621, 54 L. Ed. 1001. This point is here referred to because it is not specifically disposed of in the exhaustive opinion of Judge Ray. With the views expressed in that opinion we fully concur. The present case is readily differentiated from those relied upon by plaintiffs in the circumstance that the children of this testator are given •their respective shares absolutely. They and they only have power to dispose, each of her share, having that power over the corpus, and in the meantime the enjoyment of the income. They may fairly he held to have each a vested estate of which she has the enjoyment. We are not persuaded by the argument that the statute requires both possession and enjoyment as essential to liability for this tax. The judgment is affirmed.